Aula 01 - consensualidade e contratualização na administração pública

Summary

The video script introduces the concept of administrative concertation, emphasizing its role in fostering dialogue and consensus within public administration. It explains the evolution of public management from unilateral to consensual approaches, highlighting the benefits such as increased legitimacy, reduced litigation, and enhanced legal certainty. The script also explores the growth of consensual administrative contracts, including mechanisms like public hearings and PPPs, and how these tools contribute to more effective governance. Finally, it discusses the legislative competences in Brazil related to consensual instruments and administrative contracts.

Takeaways

• 😀 Administrative concertation refers to a shift in public administration towards consensus-building rather than unilateral decision-making.
• 😀 The concept of administrative concertation is linked to ‘administrative personalization,’ where decisions are made through dialogue and cooperation.
• 😀 Administrative concertation does not replace traditional unilateral administrative processes but coexists with them, enhancing their effectiveness.
• 😀 The main benefits of administrative concertation include increased legitimacy, reduced litigation, improved legal certainty, and cost efficiency.
• 😀 When the public administration engages in dialogue with stakeholders, decisions are more accepted by society and have higher legitimacy.
• 😀 By reducing conflicts and judicial intervention, administrative concertation helps to avoid judicialization, where policies are challenged in courts.
• 😀 The use of consensual tools, such as public hearings and consultations, fosters dialogue and builds consensus during administrative processes.
• 😀 Organic consensual mechanisms, such as collegiate bodies with external members, ensure continued societal and market participation in public decision-making.
• 😀 Contractual instruments, such as public-private partnerships (PPPs) and collaboration agreements, are key expressions of consensual administrative models.
• 😀 In Brazil, the increase in contractualization reflects the growing focus on consensus in public administration, with administrative contracts facilitating collaboration.
• 😀 Legislative competence in administrative processes is decentralized in Brazil, with the National Congress creating general rules for consensual instruments that apply across the Union, states, and municipalities.

Q & A

What is the significance of administrative concertation in the context of administrative law?

Administrative concertation refers to the movement toward building consensus in public administration, which values dialogue both within public administration and with society and the market. This approach contrasts with traditional, unilateral decision-making by public authorities.

What is the relationship between administrative concertation and consensualization?

Administrative concertation is essentially synonymous with consensualization. Both terms describe the effort to create consensus within public administration and across interactions with society, as opposed to unilateral impositions by the state.

How does consensual administration improve legitimacy and decision-making?

Consensual administration enhances legitimacy by involving decision recipients in the process, making them part of the decision-making. This participation leads to greater acceptance of administrative actions, reducing resistance and fostering legitimacy.

What are some of the benefits of consensual administrative concertation?

The benefits of consensual administrative concertation include increased legitimacy of decisions, reduced litigation, fewer judicial challenges, more stable and predictable decision-making, and increased efficiency, as less time and resources are spent on defending decisions.

What are the three main types of consensual instruments used in administrative processes?

The three main types of consensual instruments are procedural instruments (such as public hearings and consultations), organic mechanisms (like collegiate bodies with external participation), and contractual instruments (such as public-private partnerships and collaboration agreements).

What are procedural instruments and how do they contribute to administrative concertation?

Procedural instruments, such as public hearings and consultations, provide spaces for dialogue during administrative processes. They allow stakeholders to contribute to decision-making, enhancing transparency and fostering consensus-building.

What role do organic mechanisms play in administrative concertation?

Organic mechanisms involve the inclusion of external members (from society or the market) in collegiate bodies. These members have the right to speak, vote, and deliberate alongside public officials, ensuring that public administration decisions reflect a broader range of perspectives.

How does the contractualization process reflect consensualization in public administration?

Contractualization is a direct expression of consensualization, as contracts are based on mutual agreement between the contracting parties. The growing use of contracts in public administration, such as in public-private partnerships and cooperation agreements, reflects the shift toward a more consensus-driven approach.

How does the legal framework in Brazil affect administrative concertation and contractualization?

In Brazil, the legal framework is fragmented. While municipalities, states, and the Union each have autonomy to legislate their own administrative processes, the National Congress holds authority to create general rules for consensual instruments like contracts, which apply across all levels of government.

What is the role of the National Congress in legislating on consensual administrative instruments?

The National Congress in Brazil is responsible for creating general rules regarding consensual administrative instruments, including bidding laws, public-private partnership laws, and other frameworks that regulate contractual relationships in public administration.